Much has been written about the world-wide opioid addition crisis. In a great many of these cases, those addicted to opioids became dependent on the drug after being prescribed the medication for legitimate medical reasons.
Last month, the U.S. Equal Employment Opportunity Commission (EEOC) released its first ever guidance document on how an employer is to manage an employee or job applicant who uses (or has used) opioids “Use of Codeine, Oxycodone, and Other Opioids: Information for Employees.” The guidance is intended to clarify employee rights (and employer obligations) under the Americans with Disabilities Act (ADA) when managing employees and job applicants alike who are using (or have used) opioids. The guidance expresses EEOC's opinion that many of these individuals are considered "disabled" and thus entitled to the myriad protections afforded under the ADA.
As an initial matter, the guidance makes clear that current illegal drug use is not a covered "disability", and thus employers can refuse to hire or can discipline employees based upon their illegal use of opioids, even if there are no attendant performance or safety problems. The guidance goes on to clarify that employers are not required to reasonably accommodate employees who use opioids illegally.
In contrast, individuals who are (or were) lawfully using opioid medication (including if they are in treatment for opioid addiction and are receiving Medication Assisted Treatment (MAT)) are protected "disabled" individuals under the ADA, as are individuals who are in recovery from an opioid addiction. That means that these individuals are entitled to a reasonable accommodation like any other "disabled" person and cannot be denied a job, disciplined or fired on account of their legal use of opioids (or history of such use) unless it can be proven that they are otherwise incapable of doing the job safely and effectively, or are disqualified under another federal law.
Accordingly, under the ADA, an employer must be prepared to engage in the "interactive process" with these individuals and be prepared to make necessary reasonable accommodations unless the employer can overcome the very high bar of proving that making such accommodations would cause the employer to suffer an "undue hardship."
In reaching this conclusion, the EEOC states that opioid addiction is itself a diagnosable medical condition that could be considered a disability under the ADA, which could entitle an employee to a reasonable accommodation. (However, an employer may still deny an accommodation if an employee is using opioids illegally). So too is an employee recovering from addiction. In the latter instance, the employer must be prepared to consider accommodations to assist the employee in avoiding a relapse, such as an altered schedule to attend a support group meeting. And, an employee with a medical condition related to opioid addiction (such as depression and PTSD) could be entitled to reasonable accommodation for that conditions as well.
The Guidance cautions that where an employer is contending that an employee lawfully using opioids cannot do the job safely, the employer must be prepared to provide objective evidence of this fact or show that that the continued placement of the employee poses a significant safety risk to the employee or others, even with a reasonable accommodation. An employee cannot be removed from (or denied) a job based solely upon remote or speculative risks.
The guidance clarifies that an employer may ask an employee to undergo a medical evaluation to determine whether the employee can safely and effectively do the job. Indeed, the EEOC also issued technical assistance for medical providers, “How Health Care Providers Can Help Current and Former Patients Who Have Used Opioids Stay Employed,” to guide medical providers in providing the documentation necessary for employers to evaluate accommodation requests, and to determine whether an employee is a safety risk. Employers should familiarize themselves with these guidelines as well since they identify what information employers can seek from their employees' medical providers in fulfilling their obligations to engage in the interactive dialogue process.
Notably, even if an employee cannot do the job safely or reliably, an employer may nevertheless be required to hold the employee’s job open while the employee takes a leave of absence for treatment or recovery, or may even have to reassign the employee to a different job in some cases.
In sum, if you have an applicant or employee presenting with challenges related to opioid use or addiction, it is important that you get all the information needed to evaluate whether the applicant or employee has a covered disability. If so, you will need to evaluate: (i) the extent to which the employee is able to do the job without putting herself, co-workers, customers or others at undue risk; (ii) where, and if so what kind, of reasonable accommodation can be furnished; and (iii) whether the employee is qualified to do the job despite the addiction/being in recovery.
If you have any questions about the matters discussed in this issue of Compliance Matters, please call your firm contact at (818) 508-3700 or 704-765-1409, or visit us online at www.brgslaw.com.
Richard S. Rosenberg
Stephanie B. Kantor
Ballard Rosenberg Golper & Savitt, LLP